Puyallup Development Agreement –01.30.19

RECITALS 1. DEFINITIONS 2. COOPERATION AND GOOD-FAITH EFFORTS 3. SEPA COMPLIANCE 4. PROJECT SCHEDULE 5. DEVELOPMENT STANDARDS 6. FUNDING, INVOICE AND PAYMENT PROCEDURES FOR PROJECT-RELATED IMPROVEMENTS NOT CONSTRUCTED BY SOUND TRANSIT 7. PROJECT MITIGATION 8. MINOR REVISIONS TO PROJECT APPROVALS 9. PLAN REVIEW, PERMITTING, AND CONSTRUCTION 10. PERMITS 11. UTILITY RELOCATION 12. USE OF PARKING GARAGE FOR NON-COMMUTER RAIL USE 13. FACILITY LOCATION SIGNS 14. LIABILITY, INDEMNIFICATION 15. INSURANCE 16. LIENS 17. DISPUTE RESOLUTION 18. DEFAULT 19. REMEDIES; ENFORCEMENT 20. TERM; TERMINATION 21. COVENANTS AND WARRANTIES 22. RECORDINGS, TAXES AND OTHER CHARGES 23. ASSIGNABILITY; BENEFICIARY 24. DESIGNATED REPRESENTATIVES 25. NOTICE 26. GENERAL PROVISIONS 27. SEVERABILITY

LIST OF EXHIBITS Exhibit A – Sound Transit Board Resolution R2016-07 Selecting the bicycle, pedestrian, and parking access improvements to be built for the Puyallup Access Improvement Project. Exhibit B –Puyallup Station Access Improvements Elements Constructed by Sound Transit Exhibit C – Puyallup Station Access Improvements Elements Constructed by City, with ST Contribution Exhibit D – Puyallup Station Access Improvements Draft Schedule Exhibit E – 5th Street NW Pedestrian Bridge Airspace Easement Exhibit F – Utility Conflicts Exhibit G – Downtown Design Guidelines Exhibit H – Invoice Form

Exhibit I – Basis of Design

Exhibit J- Project Site Plan

This Development Agreement ("Agreement") is entered into, by and between the CITY OF PUYALLUP, a Washington municipal corporation ("City''), and the CENTRAL PUGET SOUND REGIONAL TRANSIT AUTHORITY ("Sound Transit"), a regional transit authority. For and in consideration of the mutual covenants contained herein, the City and Sound Transit do hereby agree as follows regarding the Sound Transit Puyallup Station Access Improvements Project (the “Project”).

RECITALS

A. The City is a non-charter optional municipal code city incorporated under the laws of the State of Washington, with authority to enact laws and enter into development and right of way agreements to promote the health, safety and welfare of its citizens.

B. Sound Transit is a regional transit authority created pursuant to chapters 81.104 and 81.112 RCW with all powers necessary to implement a high capacity transit system within its boundaries in King, Pierce, and Snohomish Counties.

C. This agreement is authorized by sections 36.70B.170 through .210 of the Revised Code of Washington (“RCW”). In addition, the City has adopted regulations governing development agreements, as set forth in Chapter 1.15 of the Puyallup Municipal Code (“PMC”), and those regulations allow a property owner to apply to the City to enter into a development agreement to address specific project development standards including, design standards, mitigation measures, project phasing, review procedures, vesting, and other appropriate development requirements.

D. The Growth Management Act (Chapter 36.70A RCW) requires that the City plan for and encourage regional high capacity transit facilities such as Sounder (RCW 36.70A.020) and accommodate within the City such essential public facilities (RCW 36.70A.200). Likewise, the Growth Management Act grants authority to the City to impose reasonable permitting conditions on the Project.

E. Sound Transit and the City signed a Term Sheet outlining fundamental principles for future agreement(s) and actions that would establish responsibilities for improvements related to the Project. In the interest of streamlining the permitting, and to avoid duplication of processes, it is the City staff’s intent to address applicable zoning standards and development requirements, including a basic site plan review, within the Development Agreement (DA) process.

F. On November 5, 1996, central Puget Sound area voters approved local funding for Sound Move, the ten-year regional transit system plan. Sound Move includes three new types of regional transportation: light rail, commuter rail, and a regional express bus/HOV system, which will be integrated with local transit systems and use a single or integrated, regional fare structure. In 2008, voters approved financing for Sound Transit 2 (ST2) that is an element of Sound Transit’s Long Range Transit Plan.

G. These regional transit system plans include funding for, among other projects, the Sound Transit Puyallup Station Access Improvement Project, which will provide improved access at the Puyallup Sounder Station by building expanded surface parking, a multi-level parking structure and nonmotorized improvements.

H. In 2014, the Sound Transit Board adopted Motion M2014-64 identifying a package of access improvements in Puyallup as its preferred alternative to proceed into environmental review. In April

2016, the Board adopted Resolution R2016-07 selecting the project to be built in Puyallup, which includes expanded surface parking, a parking garage with approximately 500 spaces, a pedestrian bridge from the new garage over 5th Street NW to the Sounder platform, and additional nonmotorized sidewalk, pedestrian lighting and bicycle improvements to be constructed and in operation before the end of 2023, as set forth in Sound Transit Resolution R2016-07, incorporated by reference herein and attached hereto as Exhibit A.

I. In anticipation of the Project, Sound Transit and the City have engaged in planning efforts to identify capital improvements that would be necessary to increase safe and efficient accessibility to the Project and the existing commuter rail station and mitigate project impacts. The commitments contained in this Agreement regarding capital improvements are intended by the Parties to fully mitigate project impacts and satisfy Sound Transit's financial contribution toward such capital improvements.

J. Sound Transit is proceeding to design and build the Project, and will seek various land use, administrative and right-of-way approvals for construction and operation of the Project within the City. In recognition of the multiple development permits and separate review processes, and the continuing potential for conflict, overlap and duplication between such processes, the City and Sound Transit desire to consolidate permit review processes for the benefit of both parties and the public pursuant to the development agreement authority provided in RCW 36. 70B.170-.210 and Chapter 1.15 PMC. City Council approval of this DA would replace the City Hearing Examiner’s normal role in acting upon the otherwise-required CUP and variances. In addition, the City recognizes the public benefits that will accrue to the City and community from redevelopment of the property for the Project. Public benefits of the project include improved access to the existing Sounder Puyallup Station for drivers, pedestrians, and bicyclists. The new garage includes approximately 500 parking spaces (for a total of 1,252 spaces in the immediate station area) that benefit the transit riders who travel from the region to access the Sounder system. For those riders who access the station by bicycle or by foot, non-motorized improvements - including sidewalks, pedestrian lighting, and bicycle improvements will be constructed. The non-motorized improvements are also a benefit to those who live and work in the immediate area.

K. Sound Transit is the lead agency for compliance with the State Environmental Policy Act (SEPA). In coordination with the City of Puyallup, Sound Transit has completed the substantive and procedural environmental review for the Project in accordance with SEPA requirements with the publication of the Determination of Nonsignificance and SEPA Checklist on February 17, 2016. The environmental review covers the City’s issuance of permits for the project as well as environmental mitigation, and the City will use the existing environmental documents to satisfy its SEPA responsibilities, consistent with WAC 197-11-600.

L. Sound Transit has adopted real property acquisition and relocation procedures and guidelines that comply with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (PL 91-646, 84 Stat. 1894), as amended by the Uniform Relocation Act Amendments of 1987 (PL 100- 17, 101 Stat. 246-256) and as implemented by the United States Department of Transportation (49 CFR 24), all of which establish a uniform policy for the expedient and consistent treatment of owners subjected to land acquisition practices and provide for the fair and equitable treatment of persons displaced as a result of public works programs or projects of a local public body. Pursuant to these policies and its statutory authority, Sound Transit has acquired or will acquire such real property interests as are necessary to construct, maintain and operate the Project, as described in Resolution 2016-07, Exhibit A, attached and incorporated herein.

M. Both Parties recognize the importance of expanding parking for the Puyallup Sounder Station and have mutually concluded that it is feasible to do so by 2023. Both parties will work in a collaborative manner to resolve any issues and risks to ensure that the Project is operating by 2023.

N. Pursuant to RCW 36.70B.200 and PMC 1.15.050, the City held a properly noticed public hearing, and the City Council determined that the proposed Project is generally consistent with the City’s development regulations and that any departures therefrom provided by this Agreement are offset by the benefits to be received from the Project including, various station access improvements and enhanced mitigations; that the proposed Project conforms with the conditions of approval provided in PMC 1.15.060; and has authorized the City Manager to enter into this Agreement.

NOW THEREFORE, in consideration of mutual promises and covenants herein contained related to the approval of various development permits to Sound Transit to construct, operate, and maintain the Project, the Parties hereto agree to the terms and conditions as follows:

1. DEFINITIONS

For purposes of this Agreement, the following terms, phrases, words, and their derivations shall have the meaning given herein where capitalized; words not defined herein shall have their ordinary and common meaning. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, words in the singular number include the plural number, and the use of any gender shall be applicable to all genders whenever the sense requires. The words "shall" and "will" are mandatory and the word "may" is permissive. References to governmental entities, whether persons or entities, refer to those entities or their successors in authority. If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision. References to laws, ordinances or regulations shall be interpreted broadly to cover government actions, however nominated, and include laws, ordinances and regulations now in force or hereinafter enacted or amended.

1.1 "Agreement" means this Development Agreement approved by appropriate action of the City and of Sound Transit.

1.2 "Approved Building Permit Plans" means prints showing in detail the proposed construction and specifications of the parking garage and pedestrian bridge, including other roadway improvements, pedestrian improvements and other items further described in the building permits approved by the City.

1.3 "City" means the City of Puyallup and any successor or assignee following an assignment that is permitted under this Agreement. Contractor. "Contractor" means the entity or entities that will contract with Sound Transit to complete the design of the Project, to obtain all remaining permits for the Project, and to construct the Project, all based upon a design/build procurement method.

1.4 "Design Submittal" means a set of design documents for the Project that will be submitted to the City for review as the Project moves through various review and approval processes. There shall be three different design submittals as follows:

a) "60% Design Submittal" means a Design Submittal that presents the basic concept of the overall Project including advanced detail on existing utilities and proposed major utility line relocations, construction phasing, traffic lane configurations, structural types, sizes and

locations, urban design concepts, new and proposed right-of-way limits, extent of roadway modifications, and other supporting concepts to define the intent of the Project. This submittal is intended to trigger any requests for significant changes or corrections in the form of permitting conditions that may be required by the City.

b) "100% Design Submittal" (or "Building Permit Submittal') means a Design Submittal that illustrates the entire scope of the work under design so that all reviewers can comment on the details of the Project, including utility relocation improvements, signal footprints, new traffic signaling plans, ADA compliant crossings, and grading plan. This submittal is intended to ensure that new, never-before-seen items of significance do not appear for the first time in the Issued for Construction Design Submittal. This submittal shall constitute the Building Permit Submittal. 100% Design submittal may defer automatic fire sprinkler, automatic fire alarm, and DAS emergency radio system plans and submittal; all other elements of project constructability will be included in a single permit submittal unless otherwise approved by the City.

c) "Issued for Construction Design Submittal" (or “IFC Submittal”) means a Design Submittal that has incorporated all corrections required based on review of the I00% Design, or Building Permit, Submittal and that is sufficiently complete for Project Review for compliance and upon which the Design/Build Contractor will rely in constructing the Project, including but not limited to a complete set of constructions plans, drawings, and specifications, draft construction schedule, and traffic plan. The Approved Building Permit Plans shall not materially differ from the Issued for Construction Design Submittal. Permit review for compliance of the submitted plan is not an acceptance of omissions or oversights by the City or noncompliance with applicable regulations. The contractor is responsible for ensuring compliance with all applicable building codes and regulations.

1.5 "Parties" means the City of Puyallup and the Central Puget Sound Regional Transit Authority.

1.6 "Project" means the Puyallup Station parking garage, pedestrian bridge and associated street, traffic and signal improvements as described in Exhibit B, attached and incorporated herein, and as approved by the City pursuant to the approvals described in this Agreement. The Project consists of the elements described in Exhibit B, all of which Sound Transit will fund, design, and construct.

1.7 "Puyallup Station Parking Garage" or "Garage" means the parking facility located at 5th Street NW and 2nd Avenue NW. The Garage may include mechanical devices such as security cameras, elevators, and passenger amenities such as informational signage, weather protection, and artwork.

1.8 "Sound Transit" means the Central Puget Sound Regional Transit Authority.

1.9 "Third Party'' means any person other than the City or an employee of the City and any person other than Sound Transit or an employee of Sound Transit.

2. COOPERATION AND GOOD-FAITH EFFORTS

2.1 The Parties understand and agree that the process described in this Agreement depends upon timely and open communication and cooperation between the Parties. In this regard, communication of issues, changes, or problems that arise with any aspect of the work should

occur as early as possible in the process, and not wait for explicit due dates or deadlines. Each party agrees to work cooperatively and in good faith toward resolution of any such issues.

2.2 The Parties acknowledge that this Agreement contemplates the execution and delivery of a number of future documents, instruments and permits, the final form and contents of which are not presently determined. The Parties agree to work in good faith to develop the final form and contents of such documents, instruments and permits, and to execute and deliver the same promptly.

2.3 The City will provide timely review by both dedicated and regular city staff of all permit applications necessary to complete the Project, subject to the City's applicable process and regulations. This includes Sound Transit's payment of applicable permit fees as described in Section 10.

2.4 The City further agrees to take all necessary actions to implement the improvements identified in Section 6.1, below, concurrent with construction of the Project, as practicable, including any required environmental review, right-of-way acquisition, design and construction. Sound Transit acknowledges that the City is not responsible for delays resulting from extenuating circumstances beyond its control.

2.5 The City may apply for grants available to local agencies to supplement Sound Transit funds for street, sidewalk or other improvements contemplated by this Agreement. Upon request, Sound Transit will provide support for grant applications made by the City which could also apply to ST- administered grant cycles.

3. SEPA COMPLIANCE

3.1 Sound Transit is the lead agency for compliance with the State Environmental Policy Act ("SEPA"). In coordination with the City of Puyallup, Sound Transit has completed the substantive and procedural environmental review for the Project in accordance with SEPA requirements with the publication of the Determination of Nonsignificance and SEPA Checklist on February 17, 2016. The environmental review covers the City’s issuance of permits for the Project as well as environmental mitigation, and the City will use and rely upon the existing environmental documents to satisfy its SEPA responsibilities, consistent with WAC 197-11-600. The City agrees that the Project has been subject to full and complete procedural and substantive SEPA review.

3.2 The Parties agree that the mitigation measures described in this Agreement shall constitute the full and complete exercise of the City's substantive SEPA authority. The City has carefully considered the environmental impacts associated with the Project and the mitigation measures contained in the Project Environmental Documents. Pursuant to the authority granted in RCW 43.2IC.060 and the Puyallup Municipal Code, the Parties agree that the mitigation measures included as part of the Project are necessary to mitigate specific adverse environmental impacts and are deemed sufficient to mitigate such impacts, are reasonable, and are capable of being accomplished.

3.3 The City shall be responsible for performing any necessary environmental review related to the City's construction of capital improvements as described in Section 6.1 of this Agreement, in the event that such construction projects exceed the scope of environmental analysis contained in the Project Environmental Documents.

4. PROJECT SCHEDULE

The Project schedule is shown in Exhibit D, attached and incorporated herein, and includes major milestones for the Project, which are subject to change and will be revisited during ongoing coordination meetings. The Project schedule may be updated by mutual consent of the Designated Representatives.

5. DEVELOPMENT STANDARDS

5.1 Pursuant to RCW 36.70B.170 through 36.70B.210, as amended, as well as Chapter 1.15 PMC, the City may enter into a development agreement with Sound Transit for the Project. Under the terms and conditions of this Agreement, and in an effort to streamline the permitting process and avoid duplication, the City hereby waives the requirement that Sound Transit obtain a Conditional Use Permit for the Project.

5.2 The proposed Project site is zoned General Commercial (CG). The structured parking garage is considered a Community Facility Use requiring a Conditional Use Permit (PMC 20.30.010(6). As stated in 5.1, upon City Council approval of this DA, the CUP requirement is waived based on the understanding that the Project will be generally consistent with current City development standards and regulations. Any departures from these development standards and regulations are offset by the Project's public benefits to the City and community, and by the requirements of this Agreement. Plan reviews will be conducted as a means to provide more detailed staff review and conditioning of the Project.

Chapter 20.80 of the PMC includes the procedures and responsibilities of the hearing examiner in the processing, consideration, and issuance of conditional use permits. Five required conditions must be met to support a CUP issuance. Although the CUP requirement will be waived and City Council approval of this Agreement will replace the hearing examiner process, the findings of these conditions shall be generally met (Section 20.80.010), as described below.

a) The proposed use is consistent with the description and purpose of the zone district in which the property is located. The Project is located in a General Commercial (CG) zone where developments usually rely on automobiles as the principal source of access and some quasi-light industrial uses are permitted. The Project is compatible with the intended uses in this zone.

b) The Project will not be detrimental to the public health, safety, comfort, convenience and general welfare and will not adversely affect the established character of the surrounding neighborhood. Although the project is not subject to the City’s Downtown Design Guidelines, Sound Transit will attempt to comply with the Design Guidelines where feasible, as described in Section 5.6 and Exhibit G. Architectural elements such as expression of columns and variation in texture and surface plane will be incorporated. Screening materials will be applied to all sides of the garage facades, allowing light and air to penetrate the interior and screen views of the parked cars.

c) The proposed use is properly located in relation to other land uses and transportation and service facilities in the vicinity and does not place an undue burden on those facilities and local streets. Through the environmental review and determination process and further negotiation between the City and Sound Transit, impacts of the Project have been

determined and mitigation measures have been identified in this Agreement that will mitigate the Project impacts, as described in Section 7.

d) The Project site is sufficient size to accommodate the proposed use. Some setbacks and perimeter landscaping requirements require a development departure as described in Section 5.5. The site features will be compatible and harmonious with adjacent and nearby uses.

e) The granting of this Agreement will not be contrary to the adopted comprehensive plan, or the objectives of any code, ordinance, regulation, specifications or plan in effect to implement said comprehensive plan, as further noted in Section 5.5.

5.3 The vesting described in this Agreement shall apply throughout the "Construction Build out Period" for the Project, which the Parties have established as ten years following execution of this Agreement. During the Construction Build out Period, the City shall neither modify nor impose new or additional development regulations or standards for the Project beyond those set forth in this Agreement unless other county, state or federal laws preempt or otherwise preclude the City’s authority to vest regulations. To the extent this Agreement does not establish or define development regulations or standards covering a certain subject, element or condition, the Project shall be governed by the City development standards.

5.4 The Project will comply with the City of Puyallup’s permitting processes and the codes in force at that time and will be used for the entirety of this Project’s Design, Construction, and Operation under a City-issued Certificate of Occupancy.

5.5 The City has determined that the Project is consistent with the Comprehensive Plan and development regulations. So long as the Project is developed consistent with appropriate City permit approvals and this Agreement, the public health, interest, and welfare are adequately protected within the bounds of the law. Therefore, the City is allowing departures (variances) from development regulations because the Project will be providing a benefit to the City of an equal or greater value relative to the standards from which departure is being allowed. Project benefits are described in Recital J of this Agreement.

Chapter 20.85 of the PMC includes the procedures and responsibilities of the hearing examiner in the processing, consideration, and issuance of variances. The variance process for this Project will be waived and City Council approval of this Agreement will replace the hearing examiner process. To support the intent of the variances, the findings of variance required conditions (Section 20.85.010) shall be generally met, as described below.

a) The Project is consistent with limitations upon uses of other properties within the vicinity of the site (1,000’);

c) The departures are necessary because of the size of the parking structure that must be accommodated on the site. The number of parking spaces were previously agreed upon with the City and to accommodate the required size, the building height and setbacks need to be modified.

The City hereby allows departures from the standards, as follows:

a) Building height/number of stories (Section 20.30.030)

b) Front and side yard setbacks (Section 20.30.030)

c) Required perimeter landscaping of 6’ minimum (Section 20.58) – see Section 5.13

d) Parking dimensions (Section 20.55)

e) Required parking lot landscaping (Type IV) (Vegetation Management Standards)

5.6 The Project is located in the CG (General Commercial) zone and outside the Central Business District (CBD), therefore the City of Puyallup Downtown Design Guidelines (Ordinance 2851) do not apply. Sound Transit agrees to include the Downtown Design Guidelines as a reference document in the Design-Build Project Requirements and will attempt to comply with the Design Guidelines where feasible. Those portions of the Design Guidelines that the parties have agreed will not apply to the Project are outlined in Exhibit G, attached and incorporated herein.

5.7 The City and Sound Transit agree the Project will not include a retail component. The Project design will incorporate elements, such as screening parked cars and enhancing pedestrian activity/safety.

5.8 The City and Sound Transit agree that Sound Transit will invite all members of the Puyallup Design Review and Historic Preservation Board (DRHPB) to participate in the stakeholder group in order to gather feedback on design elements and look-and-feel options for the new parking garage. Sound Transit further agrees to present the proposed design using information extracted from the 60% Design Submittal to the Puyallup Design Review Board at a public meeting to allow the Board and any members of the public attending an opportunity to review and provide recommendations on the design.

5.9 In addition to this Agreement, additional permits and approvals will be required by the City, including but not limited to: building, right-of-way, clearing, grading, and drainage, hauling route, sign, demolition, fire alarm, sprinkler, plumbing, mechanical, and electrical permits. Subsequent to execution of this Agreement, the City agrees that it shall issue permits and approvals necessary to complete the Project consistent with this Agreement and any other applicable laws and regulations within the City's jurisdiction. The City shall exercise due diligence to review and issue decisions on any additional permits and approvals efficiently and in a timely manner as further described in this Agreement.

5.10 Pursuant to the requirements of Chapter 35.79 RCW, Sound Transit will petition for a street vacation for 3rd Avenue NW between 5th Street NW and 6th Street NW for the construction of the parking garage. Sound Transit or its Contractor will remove the utility lines and structures as described in Section 11. Both Parties recognize that street vacation decisions are discretionary decisions of the City Council after appropriate notice and public hearing. Nothing within this section shall be construed to require the City Council to approve any street vacation. City recognizes should Sound Transit’s petition for street vacation not be granted, the Garage design and construction will be affected, perhaps reducing garage stall counts.

5.11 The City shall grant Sound Transit an Airspace Easement in perpetuity over 5th Street NW for the pedestrian bridge. The parties agree the pedestrian bridge is beneficial to both Sound Transit and the City. Therefore, there will be no compensation for the Airspace Easement. The form of such Airspace Easement to be executed and recorded shall be as outlined in Exhibit E, attached and incorporated herein. The easement shall include the envelope as described in Exhibit E.

5.12 The City and Sound Transit agree the Project will adhere to the project’s Basis of Design Report as described in Exhibit I.

6. FUNDING, INVOICE AND PAYMENT PROCEDURES FOR PROJECT-RELATED IMPROVEMENTS NOT CONSTRUCTED BY SOUND TRANSIT

6.1 Sound Transit shall reimburse the City a total amount not to exceed Three Million and four hundred thousand dollars ($3,400,000) for the design and construction of non-motorized improvements that support access to the Project and that will be owned and maintained by the City. The improvements are shown in Exhibit C in order of precedence/importance, attached and incorporated herein, and listed below:

Tier 1- Improvements the City must complete before 3rd Ave NW is closed.

• Intersection improvement at 5th & Main to increase curb radii, with associated improvements to signal equipment

Tier 2- Improvements the City will design and deliver prior to Project completion. Note: these are not traffic mitigation requirements related to the Project.

• 7th St NW/3rd Ave NW. NW corner- The existing No Parking on the north side of 3rd will be extended west. Also, channelization and a stop bar will be reconfigured for eastbound traffic on 3rd Ave NW approaching the 7th St. NW intersection. (improvements to be completed before the closure of 3rd Ave NW occurs)

• Installation of an RRFB and crosswalk at 7th St NW/ W Main Ave (improvements to be completed before the closure of 3rd Ave NW occurs)

• Installation of an RRFB at 6th St NW/ W Main Ave

• Replacement of 44 existing curb ramps

• Bike lanes on Stewart Ave from 23rd Street NW to 7th Street NW

• Installation of a Rectangular Rapid Flashing Beacon (RRFB) for the at-grade pedestrian crossing at 3rd Street NE/Spring Street NE/E Main Ave.

• Retrofit of 2 existing signals to add accessible pedestrian equipment

• Street lighting along 5th Street SW from 7th Ave SW to BNSF tracks

Tier 3- Improvements the City will design and deliver only if Tier 1 and Tier 2 Improvements are designed and construction allocated/complete; and there are nonmotorized funding remaining.

• Adaptive Signal Controls

• Flashing Yellow Arrows

• Stormwater management measures and utility relocations as required for above improvements

6.2 The amount set forth above reflects the Parties' best estimates of the amount that may be required to design and construct the improvements described in Section 7.1, and the allocation of these amounts to be paid by Sound Transit to the City. Additional flashing arrows and adaptive signal control elements are only able to proceed forward if there are additional funds available; such as from design and/or construction savings of the nonmotorized elements. Actual amounts reimbursable under this Agreement shall be based on actual work performed and made pursuant to reimbursement provisions contained herein. In no event shall the City be paid for costs that are not documented pursuant to the requirements of this Agreement.

6.3 Reimbursement payments from Sound Transit to the City shall be made as follows:

a) Upon execution of the DA, Transit shall pay the City 15% of the total nonmotorized cost contribution.

b) Upon completion of thirty percent (30%) of the value of the construction contract, as determined by the City, Sound Transit shall pay the City actual costs of the construction contract at this phase.

c) Upon completion of sixty percent (60%) of the value of the construction contract, as determined by the City, Sound Transit shall pay the City actual costs of construction contract at this phase.

d) Upon completion of one hundred percent (100%) of the value of the construction contract, as determined by the City, and final acceptance of the Project by the City, Sound Transit shall pay the City a maximum of the remaining amount of the capped contribution or the remaining actual cost, whichever is less.

6.4 The City shall submit invoices and supporting documentation for Sound Transit's contribution payments. The invoices must include the appropriate purchase order number, which will be provided by Sound Transit after execution of this Agreement, a cover memo as described in Exhibit G, attached and incorporated herein, and supporting documentation detailing the work completed and associated costs incurred by the City up to the “not to exceed" installment amounts described in Section 6.3 (a)-(d) above. The City shall submit its invoices with the required documentation via email or mail to [email protected], or Sound Transit, Accounts Payable, 401 S. Jackson St., Seattle, WA 98104-2826. Invoices are payable forty-five (45) days upon Sound Transit's receipt of the invoice and acceptable documentation. If Sound Transit determines that an invoice lacks sufficient documentation to support payment, Sound Transit will notify the City of its determination and request that the City provide additional documentation. Sound Transit may withhold payment of the invoice until supporting documentation are provided.

7. PROJECT MITIGATION

Through the environmental review and determination process and further negotiation between the City and Sound Transit, impacts of the Project have been determined and mitigation measures have been identified in this Agreement that will mitigate the Project impacts. Such mitigation measures will be funded, designed, and constructed by Sound Transit.

The mitigation measures identified through environmental review include:

• A full traffic signal at 7th Street NW and W Stewart Avenue

• An intersection modification to add an eastbound right-turn lane on W. Stewart Avenue for traffic traveling onto southbound N. Meridian.

City and Sound Transit agrees to a full cost contribution of ($121,000,000) for the offsite drainage in lieu of providing a deep-pumped vault on the City ROW. The City and Sound Transit agrees to a full cost contribution ($1,500,000) for the onsite drainage in lieu of providing a deep- pumped vault. The City is proceeding with design of a replumbing project in order to provide direct drainage to the Puyallup River. ST will release 15% of the total funding when the DA is signed to reimburse for design expenses. The remainder funding will be released when the City issues Issue for Construction plans for the City storm conveyance project.

Sound Transit and the City shall agree to certain re-plantings to off-set the expected loss of approximately 20 street trees along the affected segment of 3rd Avenue NW that were planted as a 2014 Arbor Day project.

8. MINOR REVISIONS TO PROJECT APPROVALS

The City Manager or designee is authorized to approve minor revisions to the Project that are necessary and generally consistent with this Agreement. Such minor revisions shall include (a) revisions within the scope and intent of the original Project approvals, (b) revisions within the scope of the Project Environmental Documents.

9. PLAN REVIEW, PERMITTING, AND CONSTRUCTION

9.1 Sound Transit shall obtain approval from the City for construction of the Project through submittal of the appropriate applications and Design Submittals as described in this Agreement. The City acknowledges that Sound Transit will be procuring this Project using design/build procurement methods and further acknowledges that the Contractor may, at Sound Transit's discretion, make any of the required submittals on Sound Transit's behalf. In that regard, references to "Sound Transit" within Section 9 shall be interpreted to mean "Sound Transit or its Contractor, at Sound Transit's discretion" unless the context clearly requires otherwise.

9.2 Upon receipt of each Design Submittal from Sound Transit, the City shall perform a review of the Design Submittal on an as needed basis and return its comments and corrections on the designs, plans, and specifications from all relevant City departments and utilities to Sound Transit.

100% Design Submittal This submittal is intended as the Permit Submittal. The City shall perform a review of the submittal and return its comments and corrections on the designs, plans, and specifications from all relevant City departments to Sound Transit, the City

acknowledges the desire for expeditious review of Permit Submittals and is committed to this goal. If deemed necessary by the Parties, Sound Transit’s Design/Build Contractor will convene a comment resolution meeting to inform the City of how issues have been resolved and to discuss the adequacy of or other options for resolving the issues.

In addition to the above-described review of each Design Submittal, the Parties contemplate that the designers and the reviewers will meet regularly to review the design progress for parts of the Project "shoulder-to-shoulder" (see Project Administration section, below). This ongoing, collaborative "shoulder-to•shoulder" review is intended to keep the City's reviewers apprised of the latest developments in the design, seek informal feedback from the City on aspects of the design as design progresses, and to determine whether previously identified comments are being adequately addressed prior to the next milestone Design Submittal. The intent is to reduce formal review periods required for City permitting. To the extent that disputes arise about how a design correction should be resolved or whether a design correction is appropriate, the Parties shall use the dispute resolution process outlined in Section 17.

9.3 While most post-30% design work will be performed by the Contractor, not by Sound Transit, Sound Transit retains responsibility for ensuring that the City receives prompt responses to City requests for additional documentation, plans, specifications, drawings, and explanations.

9.4 Project Administration:

a) The City shall assign a City staff contact for the Project ("City Coordinator"). The City Coordinator shall provide central coordination of all Design Submittal reviews and comments from all involved City departments and utilities. The City Coordinator shall resolve any inconsistencies among review comments from the City departments and City utilities and shall provide Sound Transit with consistent and consolidated review, comments, and decisions. In addition to these tasks, the City Coordinator shall participate in regularly scheduled coordinated project-level meetings. The City Coordinator shall also be responsible for identifying and disclosing to Sound Transit as soon as practicable any other projects or proposals (e.g., utility projects, transportation projects, private development projects) that have the potential to conflict or interfere with the expeditious design and construction of the subject Project. The City Coordinator is identified in Section 24.

b) Sound Transit will assign a Sound Transit staff contact for the Project ("Designated Representative"). The Designated Representative shall provide central coordination for Project Design Submittals and Project coordination. In addition to these tasks, the Designated Representative shall participate in regularly scheduled coordinated project-level meetings. The ST Designated Representative is identified in Section 24.

9.5 When approving such applications for permits, the City may impose such reasonable conditions as may be required to implement this Agreement or other Project approvals. It is anticipated by the parties that Sound Transit shall submit a construction coordination plan to the City's Director of Development Services/Permits for its review and approval (after the ST Design Builder has been issued notice to proceed), and such approval shall not be unreasonably withheld.

9.6 Federal Grant Conditions. Sound Transit's design and construction of the Project may become subject to a financial assistance contract between Sound Transit and the Federal Transit Administration (“FTA”). Both parties recognize that the FTA may request a change to this Agreement to comply with its funding requirements.

10. PERMITS

10.1 Sound Transit, at its sole cost and expense, shall (i) secure and maintain in effect, all federal, state and local permits and licenses required for the construction, operation and maintenance of the Project, including, but not limited to, building, fire, environmental, and communication permits and licenses, and (ii) indemnify the City against payment of the costs thereof and against any fines or penalties that may be levied for failure to procure, or to comply with, such permits or licenses, as well as any remedial costs incurred by the City in curing any such failures.

10.2 The City shall not hinder Sound Transit's attempts to secure, obtain, and maintain, at Sound Transit's sole cost and expense, any permits, licenses or approvals of other governmental agencies or authorities, or of any necessary Third Parties, for the use of any structures or facilities, including streets, roads or utility poles.

10.3 The proposed project-related work in close proximity to the existing BNSF RR Crossing and within BNSF ROW will be led and coordinated by the City of Puyallup as the jurisdiction having authority. These proposed improvements cannot proceed forward without a permit and/or approval from BNSF. A new crossing and maintenance agreement between the City and BNSF is required for the project improvements at the 5th St NW and 7th St NW railroad crossing. ST will work closely with the City in order to expedite the required permits and/or approvals and maintain the project schedule. Sound Transit will coordinate and assist with the City in getting the BNSF agreements and approvals acceptable to the City. However, the City and ST agree that delays in obtaining the BNSF approvals or completing the improvements in BNSF ROW will not prevent the opening and use of ST’s new parking facilities if it can be mutually agreed that the delayed improvements do not impede the safe operation of parking garage.

11. UTILITY RELOCATION

11.1 City Utilities. The Parties acknowledge that certain utilities owned by the City and located on City property or within public right of way will be relocated and, or impacted by the Project. The City will relocate City-owned utilities, or if it prefers, permit Sound Transit to relocate the City- owned utilities, that conflict with the Project at Sound Transit’s expense in accordance with applicable provisions of the Puyallup Municipal Code (PMC). The City and Sound Transit will enter into a separate utility relocation agreement regarding the scope and responsibilities for work related to the relocation.

Known utility conflicts at the time of this agreement are shown on Exhibit F, attached and incorporated herein. That portion of Sound Transit's Contractor's work consisting of the City's watermain and storm system and appurtenances shall not be given final acceptance until it is approved in writing by the City. The City shall not unreasonably withhold final acceptance.

11.2 Other Utilities. The Parties acknowledge that certain utilities owned by Third Party utility entities and located on City Property must be relocated for the Project. The City shall exercise its normal powers to cause the owners of any utilities located in the public rights of way under

the jurisdiction of the City to relocate or adjust utility facilities as may be required by the Project. The City shall assert its right, to the extent legally permissible, to cause said relocation or adjustment necessitated by the Project at the utility owner's cost, consistent with state law and applicable franchise utility permits and schedule agreements. Sound Transit shall indemnify the City for any claim and undertake the defense of any litigation directed at the City arising from the City’s direction and orders of relocation to accommodate the construction of the Project. The City shall cooperate with Sound Transit in the defense of any such claim. However, Sound Transit may enter into separate agreements with non-City utility entities regarding the relocation of their facilities.

11.3 Sound Transit will pay for a Third Party utility entity’s relocation costs if the relevant City franchise agreement requires a party in Sound Transit’s position to do so. Sound Transit may enter into separate agreements with non-City utility entities regarding the relocation of their facilities. However, the City will continue to pursue timely agreement by such utilities to relocate its facilities so as not to impact the Project schedule.

Sound Transit agrees to provide the City with copies of progress reports, status reports, construction contract reports, inspection reports, RFI logs, submittal logs, and schedule updates as required in the construction contract for the Project.

12. USE OF PARKING GARAGE FOR NON-COMMUTER RAIL USE

Use of the Parking Garage for non-commuter rail use may be allowed. Any party seeking to use the parking garage will be required to enter into an agreement with Sound Transit Property Management and pay the appropriate usage fees.

13. FACILITY LOCATION SIGNS

Sound Transit, at its sole cost, expense and risk, shall furnish, erect and thereafter maintain signs showing the location of all Sound Transit facilities. Signs shall be in conformance with applicable requirements of PMC 20.60.

14. LIABILITY, INDEMNIFICATION

14.1 Sound Transit hereby agrees to indemnify, defend, and hold the City harmless from any and all claims, demands, suits, actions, damages, recoveries, judgments, costs, or expenses, including, without limitation, reasonable attorneys' fees, paid by the City and arising or growing out of or in connection with or resulting from, either directly or indirectly, the construction, maintenance, operation, repair, removal, occupancy, and use of the Project by Sound Transit, unless such claims arise from the sole or partial negligence, actions or inaction of the City, its employees, servants, agents, contractors, subcontractors or persons using the Project with permission of the City.

14.2 The City shall give Sound Transit prompt notice of any claims directly affecting Sound Transit about which it is aware. Sound Transit shall promptly assume responsibility for the claim or undertake the defense of any litigation on behalf of the City. The City shall cooperate fully with Sound Transit in the defense of any claim. The City shall not settle any claim directly affecting Sound Transit without the prior written consent of Sound Transit, which consent shall not be unreasonably withheld.

14.3 Sound Transit expressly assumes potential liability for actions brought by Sound Transit's employees and agents against the City and, solely for the purpose of this indemnification, expressly waives any immunity under the Industrial Insurance Law, Title 51 RCW. Sound Transit acknowledges that this waiver was entered into pursuant to the provisions of RCW 4.24.1 I 5 and was the subject of mutual negotiation.

15. INSURANCE

15.1 Sound Transit shall, at its sole expense, obtain and maintain during the entire term of this Agreement an appropriate program of commercial insurance, self•insurance or any combination thereof in amounts and types sufficient to satisfy its liabilities. When commercial insurance is utilized, Sound Transit shall name the City as an Additional Insured in accordance with insurer underwriting practices, and Sound Transit insurance policies shall be primary and non- contributory to any coverage maintained by the City. Sound Transit waives all rights of subrogation against the City for claims by third-parties arising under this Agreement, other than for damages, claims or liabilities arising from negligent acts or omissions of the City and its officers, employees and agents. The limits of Sound Transit's selected coverage program in no way diminish Sound Transit's obligations to the City as set forth in this Agreement. Sound Transit shall maintain this coverage program throughout the term of this Agreement, and for six (6) years after its termination, to protect the City against claims that may arise as a result of the construction, operation, or maintenance of the Project. When commercial insurance is used, coverage shall include: (i) comprehensive general liability insurance; (ii) property damage liability insurance, including coverage for explosion, collapse, and instability; (iii) workers' compensation insurance, to the extent required by law; (iv) employer's liability insurance; and (v) comprehensive auto liability coverage, including owned, hired, and non-owned vehicles.

15.2 When commercial insurance is used, Sound Transit shall carry such commercial insurance with responsible insurers, or self-insure or participate in an insurance pool or pools, at levels of coverage or with reserves adequate, in the reasonable judgment of Sound Transit, to protect Sound Transit and the City against loss, and as are ordinarily carried by municipal or privately owned entities engaged in the operation of facilities comparable to the Project.

15.3 Sound Transit shall file with the City's Risk Manager a formal letter of self•insured status, or when commercial insurance is used, Certificates of Insurance reflecting evidence of the required insurance and naming the City as an additional insured where appropriate. The coverage maintained by Sound Transit under this Agreement shall not be canceled until at least thirty (30) days' prior written notice has been given to the City.

15.4 If Sound Transit fails to maintain the appropriate program of commercial insurance, self- insurance or any combination thereof in amounts and types sufficient to satisfy its liabilities, the City may order Sound Transit to stop operating the Project until the appropriate insurance coverage program is obtained.

16. LIENS

16.1 The Project Facilities are not subject to a claim of lien. In the event that any City property becomes subject to any claims for mechanics', artisans' or materialmen’s liens, or other encumbrances chargeable to or through Sound Transit that Sound Transit does not contest in good faith, Sound Transit shall promptly, and in any event within thirty (30) days, cause such lien

claim or encumbrance to be discharged or released of record, by payment, posting of bond, court deposit or other means, without cost to the City, and shall indemnify the City against all costs and expenses, including attorneys' fees, incurred in discharging and releasing such claim of lien or encumbrance. If any such claim or encumbrance is not so discharged and released, the City may pay or secure the release or discharge thereof at the expense of Sound Transit after first giving Sound Transit five (5) business days' advance notice of its intention to do so. The City shall use its reasonable best efforts to keep Sound Transit's facilities free of all liens that may adversely affect the Project.

16.2 Nothing herein shall preclude Sound Transit's or the City's contest of a claim for lien or other encumbrance chargeable to or through Sound Transit or the City, or of a contract or action upon which the same arose.

16.3 Nothing in this Agreement shall be deemed to give, and the City hereby expressly waives, any claim of ownership in and to any part or the whole of the Project except as may be otherwise provided herein.

17. DISPUTE RESOLUTION

17.1 Any disputes or questions of interpretation of this Agreement that may arise between Sound Transit and the City shall be governed under the Dispute Resolution provisions in this Section. The Parties agree that cooperation and communication are essential to resolving issues efficiently. The Parties agree to exercise their best efforts to resolve any disputes that may arise through this dispute resolution process, rather than in the media or through other external means.

17.2 The Parties agree to use their best efforts to prevent and resolve potential sources of conflict at the lowest level.

17.3 The Parties agree to use their best efforts to resolve disputes arising out of or related to this Agreement using good faith negotiations by engaging in the following dispute escalation process should any such disputes arise:

a) Level One - Sound Transit's Project Manager or equivalent and the City's Director of Development Services/Permits shall meet to discuss and attempt to resolve the dispute in a timely manner. If they cannot resolve the dispute within fourteen (14) calendar days after referral of that dispute to Level One, either party may refer the dispute to Level Two.

b) Level Two - Sound Transit's Executive Director of Design, Engineering, and Construction Management and the City's Director of Development Services/Permits shall meet to discuss and attempt to resolve the dispute, in a timely manner. If they cannot resolve the dispute within fourteen (14) calendar days after referral of that dispute to Level Two, either party may refer the dispute to Level Three.

c) Level Three - Sound Transit's Chief Executive Officer or Designee and the City Manager or Designee shall meet to discuss and attempt to resolve the dispute in a timely manner. If they cannot resolve the dispute within fourteen (14) calendar days after referral of that dispute to Level Three, either party may refer the dispute to Level Four.

d) Level Four- Sound Transit's Chief Executive Officer and two members of the Sound Transit Board and the City Manager and two members of the Puyallup City Council shall meet to discuss and attempt to resolve the dispute in a timely manner.

17.4 Except as otherwise specified in this Agreement, in the event the dispute is not resolved at Level Three within fourteen (14) calendar days after referral of that dispute to Level Three, the Parties are free to file suit or agree to alternative dispute resolution methods such as mediation. At all times prior to resolution of the dispute, the Parties shall continue to perform and make any required payments under this Agreement in the same manner and under the same terms as existed prior to the dispute.

17.5 Matters of plan review, inspection, compliance, and the enforcement of codes shall not be subject to dispute resolution referenced in section 17, section 19, and shall be subject to applicable code provisions and administrative judgment; up to and including occupancy approval.

18. DEFAULT

No party shall be in default under this Agreement unless it has failed to perform under this Agreement for a period of thirty (30) calendar days after written notice of default from any other party. Each notice of default shall specify the nature of the alleged default and the manner in which the default may be cured satisfactorily. If the nature of the alleged default is such that it cannot be reasonably cured within the thirty (30) day period, then commencement of the cure within such time period and the diligent prosecution to completion of the cure shall be deemed a cure. Any party not in default under this Agreement shall have all rights and remedies provided by law including without limitation damages, specific performance or writs to compel performance or require action consistent with this Agreement. The prevailing party (or the substantially prevailing party if no one party prevails entirely) shall be entitled to reasonable attorneys' fees and costs.

19. REMEDIES; ENFORCEMENT

19.1 The Parties reserve the right to exercise any and all of the following remedies, singly or in combination, in the event the other violates any provision of this Agreement:

a) Commencing an action at law for monetary damages;

b) Commencing an action for equitable or other relief; and

c) Seeking specific performance of any provision that reasonably lends itself to such remedy.

19.2 In determining which remedy or remedies for violation are appropriate, a court may take into consideration the nature and extent of the violation, the remedy needed to prevent such violations in the future, whether the breaching party has a history of previous violations of the same or similar kind, and such other considerations as are appropriate under the circumstances. Remedies are cumulative; the exercise of one shall not foreclose the exercise of others.

19.3 Neither party shall be relieved of any of its obligations to comply promptly with any provision of this Agreement by reason of any failure by the other party to enforce prompt compliance, and

such failure to enforce shall not constitute a waiver of rights or acquiescence in the other party's conduct.

20. TERM; TERMINATION

20.1 This Agreement shall be effective as of the date the last party signs. Unless sooner terminated pursuant to the terms hereof, this Agreement shall remain in effect for so long as the Project is used for public transportation purposes.

20.2 Upon termination of this Agreement, Sound Transit agrees to prepare, execute and deliver to the City all documentation necessary to evidence termination of this Agreement or portion thereof so terminated. No such termination, however, shall relieve the Parties hereto of obligations accrued and unsatisfied at such termination.

20.3 Upon the cessation of use of the Project, to the extent any portion of it remaining in the Public Right-of•Way or on any other public property is not removed by Sound Transit, the City, as expressed by ordinance, may deem it abandoned and it shall become the property of the City. If the City does not desire such ownership, Sound Transit shall remove any remaining portion of the Project.

20.4 Sound Transit shall file a written removal plan with the City not later than sixty (60) calendar days following the date of the receipt of any orders directing removal, or any consent to removal, describing the work that will be performed, the manner in which it will be performed, and a schedule for removal by location. The removal plan shall be subject to approval and regulation by the City. The affected property shall be restored to as good or better condition than existed immediately prior to removal.

21. COVENANTS AND WARRANTIES

21.1 By execution of this Agreement, the City warrants:

a) That the City has the full right and authority to enter into and perform this Agreement and any permits that may be granted in accordance with the terms hereof, and that by entering into or performing this Agreement the City is not in violation of its charter or by-laws, or any law, regulation or agreement by which it is bound or to which it is bound or to which it is subject; and

b) That the execution, delivery and performance of this Agreement by the City has been duly authorized by all requisite corporate action, that the signatories for the City hereto are authorized to sign this Agreement, and that, upon approval by the City, the joinder or consent of any other party, including a court or trustee or referee, is not necessary to make valid and effective the execution, delivery and performance of this Agreement.

21.2 By execution of this Agreement, Sound Transit warrants:

a) That Sound Transit has full right and authority to enter into and perform this Agreement in accordance with the terms hereof, and by entering into or performing under this Agreement, Sound Transit is not in violation of any of its agency governance rules, or any law, regulation or agreement by which it is bound or to which it is subject; and

b) That the execution, delivery and performance of this Agreement by Sound Transit has been duly authorized by all requisite Board action, that the signatories for Sound Transit hereto are authorized to sign this Agreement, and that the joinder or consent of any other party, including a court or trustee or referee, is not necessary to make valid and effective the execution, delivery and performance of this Agreement.

22. RECORDINGS, TAXES AND OTHER CHARGES

22.1 This Agreement shall be recorded pursuant to the requirements of 36.70B.190.

22.2 Sound Transit shall pay all transfer taxes, documentary stamps, recording costs or fees, or any similar expense in connection with the recording or filing of any permits that may be granted hereunder. Sound Transit further agrees that if it is determined by any federal, state, or local governmental authority that the sale, acquisition, license, grant, transfer, or disposition of any part or portion of the Project or rights herein described requires the payment of any tax, levy, excise, assessment, or charges, including, without limitation, property, sales or use tax, under any statute, regulation, or rule, Sound Transit shall pay the same, plus any penalty and/or interest thereon, directly to said taxing authority and shall hold the City harmless therefrom. Sound Transit shall pay all taxes, levies, excises, assessments, or charges, including any penalties and/or interest thereon, levied or assessed on the Project, or on account of their existence or use, including increases attributable to such existence or use, and excluding taxes based on the income of the City, and shall indemnify the City against payment thereof. Sound Transit shall have the right to claim, and the City shall reasonably cooperate with Sound Transit in the prosecution of any such claim for refund, rebate, reduction or abatement of such tax(es).

22.3 The City may pay any tax, levy, excise, assessment or charge, plus any penalty and/or interest thereon, imposed upon Sound Transit for which Sound Transit is obligated pursuant to this Section if Sound Transit does not pay such tax, levy, excise, assessment, or charge when due. Sound Transit shall reimburse the City for any such payment made pursuant to the previous sentence, plus interest at the prime rate per annum, as published in the Wall Street Journal.

23. ASSIGNABILITY; BENEFICIARY

23.1 This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors or assignees. No assignment hereof or sublease shall be valid for any purpose without the prior written consent of the other party, and any attempt by one party to assign or license the rights or obligations hereunder without prior written consent will give the other party the right, at its written election, immediately to terminate this Agreement or take any other lesser action with respect thereto. The above requirement for consent shall not apply to (i) any disposition of all or substantially all of the assets of a party, (ii) any governmental entity merger, consolidation, or reorganization, whether voluntary or involuntary, (iii) a sublease or assignment of this Agreement, in whole or in part, to a governmental entity, or (iv) a sale, lease, or other conveyance subject to those requirements set forth in this Agreement; provided, however, that no sublease or assignment under (ii) or (iii) shall be permitted to a governmental entity not operating, constructing or maintaining the Project on behalf of Sound Transit, and provided further that no unconsented assignment shall relieve Sound Transit of its obligations and liabilities under this Agreement.

23.2 Either party hereto may assign any monetary receivables due them under this Agreement; provided, however, such assignment shall not relieve the assignor of any of its rights or obligations under this Agreement.

23.3 Sound Transit acknowledges and agrees that the City may designate, in writing, a designee to (i) receive information (including information designated or identified as confidential) and notices under this Agreement, and (ii) provide certain approvals or consents required from the City under this Agreement. In the event of such designation, Sound Transit may rely on approvals or consents by such designee on behalf of the City as fully as if such actions were performed by the designator itself.

23.4 Neither this Agreement nor any term or provision hereof, or any inclusion by reference, shall be construed as being for the benefit of any party not a signatory hereto.

24. DESIGNATED REPRESENTATIVES

24.1 To promote effective intergovernmental cooperation and efficiencies, the Parties each designate a representative ("Designated Representative") who shall be responsible for coordination of communications between the Parties and shall act as the point of contact for each party. The Designated Representatives shall be responsible for the performance of the objectives of this Agreement.

24.2 Each Designated Representative is also responsible for coordinating the input and work of its agency, consultants, and staff as it relates to the objectives of this Agreement. The Parties reserve the right to change Designated Representatives, by written notice to the other party during the term of this Agreement. Each party's Designated Representative is named below with the individual's contact information.

24.3 Designated Representatives and Contact Information during Construction/Operations:

SOUND TRANSIT Ken Lee 401 S Jackson St Seattle, WA 98104 [email protected]

CITY OF PUYALLUP Tom Utterback 333 S Meridian Puyallup, WA 98371 [email protected]

25. NOTICE

25.1 Unless otherwise provided herein, all notices and communications concerning this Agreement shall be in writing and addressed to the Designated Representative. Any party at any time by written notice to the other party may designate a different address or person to which such notice or communication shall be given.

25.2 Unless otherwise provided herein, all notices shall be in writing and shall be either: (i) delivered in person, (ii) deposited postage prepaid in the certified mails of the United States, return receipt requested, (iii) delivered by a nationally recognized overnight or same-day courier service that obtains receipts, or (iv) delivered electronically to the other party's Designated Representative as listed herein. However, notice under Section 22.0, Termination, must be delivered in person or by certified mail, return receipt requested.

26. GENERAL PROVISIONS

26.1 The Parties shall not unreasonably withhold requests for information, approvals or consents provided for in this Agreement. The Parties agree to take further actions and execute further documents, either jointly or within their respective powers and authority, to implement the intent of this Agreement. The City and Sound Transit agree to work cooperatively with each other to achieve the mutually agreeable goals as set forth in this Agreement.

26.2 This Agreement shall be interpreted, construed and enforced in accordance with the laws of the State of Washington. Venue for any action under this Agreement shall be Pierce County, Washington.

26.3 This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the City and Sound Transit.

26.4 Time is of the essence in every provision of this Agreement. Unless otherwise set forth in this Agreement, the reference to "days" shall mean calendar days. If any time for action occurs on a weekend or legal holiday, then the time period shall be extended automatically to the next business day.

26.5 This Agreement is made and entered into for the sole protection and benefit of the Parties hereto and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement.

26.6 This Agreement has been reviewed and revised by legal counsel for all parties and no presumption or rule that ambiguity shall be construed against the party drafting the document shall apply to the interpretation or enforcement of this Agreement. The Parties intend this Agreement to be interpreted to the full extent authorized by applicable law including the requirements of RCW 36. 70A.200.

26.7 Each Party shall be responsible for its own costs, including legal fees, incurred in negotiating or finalizing this Agreement, unless otherwise agreed in writing by the Parties.

26.8 The Parties shall not be deemed in default with provisions of this Agreement where performance was rendered impossible by war or riots, civil disturbances, floods or other natural catastrophes beyond its control; the unforeseeable unavailability of labor or materials; or labor stoppages or slowdowns, or power outages exceeding back-up power supplies. This Agreement shall not be revoked or a party penalized for such noncompliance, provided that such party takes immediate and diligent steps to bring itself back into compliance and to comply as soon as practicable under the circumstances without unduly endangering the health, safety, and integrity of both parties' employees or property, or the health, safety, and integrity of the public, Public Rights-of-way, public property, or private property.

26.9 This Agreement may be amended only by a written instrument executed by each of the Parties hereto. No failure to exercise and no delay in exercising, on the part of any party hereto, any rights, power or privilege hereunder shall operate as a waiver hereof, except as expressly provided herein.

26.10 This Agreement constitutes the entire agreement of the Parties with respect to the subject matters hereof, and supersedes any and all prior negotiations, oral and written, understandings and agreements with respect hereto.

26.11 Section headings are intended as information only, and shall not be construed with the substance of the section they caption.

26.12 In construction of this Agreement, words used in the singular shall include the plural and the plural the singular, and "or" is used in the inclusive sense, in all cases where such meanings would be appropriate.

26.13 This Agreement may be executed in several counterparts, each of which shall be deemed an original, and all counterparts together shall constitute but one and the same instrument.

27. SEVERABILITY

In case any term of this Agreement shall be held invalid, illegal or unenforceable in whole or in part, neither the validity of the remaining part of such term nor the validity of the remaining terms of this Agreement shall in any way be affected thereby.

IN WITNESS WHEREOF, each of the Parties hereto has executed this Agreement by having its authorized representative affix his/her name in the appropriate space below:

CENTRAL PUGET SOUND REGIONAL TRANSIT AUTHORITY

(SOUND TRANSIT)

Exhibit A – Sound Transit Board Resolution R2016-07 Selecting the bicycle, pedestrian, and parking access improvements to be built for the Puyallup Access Improvement Project.

Exhibit B –Puyallup Station Access Improvements Elements Constructed by Sound Transit

Exhibit C – Puyallup Station Access Improvements Elements Constructed by City, with Sound Transit Contribution

Exhibit D – Puyallup Station Access Improvements Draft Schedule

Exhibit E – 5th Street NW Pedestrian Bridge envelope for Air Space Easement

RECORDING REQUESTED BY AND RETURN ADDRESS:

SOUND TRANSIT 401 South Jackson Street Seattle, WA 98104

AIRSPACE EASEMENT FOR PEDESTRIAN BRIDGE

GRANTOR: CITY OF PUYALLUP

GRANTEE: CENTRAL PUGET SOUND REGIONAL TRANSIT AUTHORITY

ABBREVIATED LEGAL: Por. of

ASSESSOR’S TAX PARCEL NO.: Portions of:

This Airspace Easement for Pedestrian Bridge (“Easement”) is made this ___ day of ____ 2017, between the City of Puyallup, a Washington municipal corporation (“Grantor”), and the Central Puget Sound Regional Transit Authority, commonly referred to as Sound Transit, a regional transit authority under the laws of the State of Washington, (“Grantee”).

1. Grant of Easement. In consideration of mutual benefits to be derived and in consideration of the performance of the covenants, terms and condition hereinafter set forth, Grantor hereby conveys the following easement:

A non-exclusive easement across, along, in, upon and under Grantor’s property described below for the purpose of constructing, installing, altering, inspecting, improving, extending, accessing, operating, maintaining, repairing, replacing, and removing a pedestrian bridge crossing and related improvements (“Facilities”) across Grantor’s Right of Way located along 5th ST NW, including all appurtenances attached thereto together with the right of ingress to and egress for invitees across the adjacent property of Grantor (“Easement”).

2. Easement Area. The Easement is over and across a tract of land situation in the County of Pierce, State of Washington and legally described in Exhibit A. The easement area is legally described on Exhibit B and depicted on Exhibit C (the “Easement Area”).

3. Non-exclusivity. Grantor reserves the right to grant other non-exclusive easements, franchises and/or permits across Grantor’s Right of Way; provided, that such easements, franchises or permits shall not permit uses that interfere with Grantee’s authorized use of the property under this Easement. Such non-exclusive rights do not allow attachment to, or use of Grantee’s Puyallup Station Pedestrian Bridge or appurtenances thereto except as otherwise authorized by Grantee.

4. Indemnification. Grantee agrees to defend, indemnify, and hold harmless Grantor, its elected officials, officers and employees from and against any and all claims, demands or causes of action arising out of the acts, errors or omissions of Grantee, its appointed officials, employees, agents and contractors in the exercise of Grantee’s rights and privileges granted by this Easement.

The Grantee’s obligations contained in this section shall survive any termination or expiration of this Easement and any subsequent transfer by the Grantor of its interest in the easement areas.

5. Successors and Assigns. The rights and obligations of Grantor and Grantee shall inure to the benefit of and be binding on their respective heirs, successors and assigns.

6. Duration. The rights herein granted shall continue until such time as Grantee ceases to use the Easement Area for the purposes defined herein. In this event, the Easement shall terminate, Grantee shall remove the pedestrian bridge, and any improvements remaining, from the Easement Area, and lease the Easement Area in as good a condition as before the date of this Easement.

DATED THIS ______DAY OF ______2017.

GRANTOR:

City of Puyallup

By: ______

______[Printed Name]

Its: ______

STATE OF WASHINGTON ) ) ss. COUNTY OF KING )

I certify that I know or have satisfactory evidence that ______is the person who appeared before me, and acknowledged that he/she signed this instrument and acknowledged it to be the free and voluntary act and deed of the City of Puyallup for the uses and purposes therein mentioned, and on oath stated that he/she was authorized to execute said agreement.

Dated this ______day of ______, 20_____

(Signature)

(Please print name legibly)

NOTARY PUBLIC in and for the State of Washington, residing at ______. My commission expires: ______.

Exhibit F – Utility Conflicts

Exhibit G – Downtown Design Guidelines

Exhibit H – Invoice Form

Invoice Form

Invoice No. _____ Dated: ______

TO: Sound Transit Accounts Payable 401 S Jackson Street Seattle, WA 98104 [email protected]

Attention: Accounts Payable and [Sound Transit’s Designated Representative]

Re: Puyallup Station Access Project Non-Motorized Improvements

The City’s authorized representative certifies that the amount of $______is due and payable to the City in accordance with the provisions of the Agreement, as supported by the attached invoice and supporting documentation.

[Identify the phase(s), and the amounts by phase, for which the amount due applies]

The City makes the following representations and warranties to Sound Transit in connection with the Invoice:

• All work performed to date has been, unless otherwise specifically stated by the City, performed in accordance with the terms and conditions of this Agreement.

• The amount specified above has been computed in accordance with, and is due and payable under, the terms and conditions of the Agreement, has not been the subject of any previous invoice (unless disputed or rejected for payment) and is not the subject of any pending invoice from the City.

Any liability of Sound Transit arising from these representations and warranties are governed by the terms and conditions of the Agreement.

City of Puyallup

By: ______Date: ______

[Name, Position]

Exhibit I – Basis of Design Report Puyallup Station Access Improvement Project Downtown Design Guidelines

Exhibit J – Project Site Plan